Van Breda v. Village Resorts Limited,

• Jurisdiction: Ontario
• Judge: O'Connor, A.C.J.O., Weiler, MacPherson, Sharpe and Rouleau, JJ.A.
• Neutral Citation: 2010 ONCA 84
• Date: 02 February 2010
• Court: Court of Appeal (Ontario)

Van Breda v. Village Resorts Ltd. (2010), 264 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. JL.073

Morgan Van Breda, Viktor Berg, Joan Van Breda, Tony Van Breda, Adam Van Breda and Tonnille Van Breda (plaintiffs/respondents) v. Village Resorts Limited, Superclubs International Ltd., Club Resorts Ltd., Rene Denis and Sport Au Soleil (defendants/appellants)

(C49188)

Anna Charron, Estate Trustee of the Estate of Claude Charron, deceased, the said Anna Charron, personally, Jennifer Candace Charron, Stephanie Michelle Charron and Christopher Michael Charron (plaintiffs/respondents) And Bel Air Travel Group Ltd., Hola Sun Holidays Limited, Village Resorts International Ltd., carrying on business as Superclubs Breezes Costa Verde. Club Resorts, Ltd. , Gaviota SA (Ltd.), Marina Gaviota, Leonardo Vega Ricardo and Andreas Oscar Sanchez Ricardo (defendants/appellant)

(C49632; 2010 ONCA 84)

Indexed As: Van Breda et al. v. Village Resorts Ltd. et al.

Ontario Court of Appeal

O'Connor, A.C.J.O., Weiler, MacPherson, Sharpe and Rouleau, JJ.A.

February 2, 2010.

Summary:

The Charron Case:

Claude and Anna Charron, a husband and wife, purchased a one week all-inclusive vacation from Hola Sun Holidays Ltd., an Ontario tour operator, through the Bel Air Travel Group Ltd. The resort, the Breezes Costa Verde (Cuba), was owned by Gaviota SA, a Cuban company, and managed by Club Resorts Ltd. (CRL), a company incorporated in the Cayman Islands. CRL was part of the SuperClubs group of companies, along with Village Resorts International Ltd. (VRL). VRL owned trademarks, including "Breezes" and "SuperClubs" which were licensed to CRL for use in connection with vacation holidays. CRL also had an agreement with Hola Sun Holidays Ltd. to provide resort accommodation for inclusion in its package tours. This particular trip included scuba diving at the resort as part of the all-inclusive package. Claude Charron died during a dive. His estate and family brought an action based on breach of contract and negligence and under the Family Law Act (Ont.), against a number of defendants, including CRL and VRL. CRL and VRL moved to dismiss the action against them on the basis that Ontario did not have jurisdiction or, alternatively, to stay the action on the grounds that Ontario was not the most appropriate forum.

The Ontario Superior Court, in a decision reported [2008] O.T.C. Uned. K67, applied the eight factor test from Muscutt v. Courcelles (Ont. C.A. 2002) to determine whether there was a real and substantial connection between the action and Ontario that could justify the assumption of jurisdiction by the Ontario courts. The motions judge determined that the defendant VRL was a mere licensor of trademarks and that there was no real and substantial connection. However, with respect to CRL, the motions judge found that Ontario did have jurisdiction to hear the case. The motions judge concluded that Ontario was clearly the most appropriate forum for the dispute. The judge dismissed the action against VRL, but refused to dismiss or stay the action against CRL.

The Van Breda Case:

Van Breda and Berg, common law spouses, booked a one week trip at SuperClubs Breezes Jibacoa resort (Cuba), through Denis, who operated a web based business under the name Sport au Soleil, from his Ottawa home. Denis had an arrangement with Club Resorts Ltd. (CRL), a company incorporated in the Cayman Islands, which managed Breezes resorts, to find sports instructors for CRL resorts, who would get accommodation in return for instruction services. Berg, a professional squash player, paid Denis a fee of US$200, to make the arrangements. Van Breda was seriously injured when sports equipment at the resort collapsed on her and she was rendered a paraplegic. Van Breda and Berg commenced an action for breach of contract and negligence, seeking personal injury damages, punitive damages and damages for loss of support, care, guidance and companionship pursuant to the Family Law Act (Ont.) against Denis, Sport du Soleil, SuperClubs International Ltd., CRL and Village Resorts Limited, both controlled by SuperClubs International. The owner of the resort was a Cuban corporation not named as a party to this action. All defendants moved to dismiss the action for want of jurisdiction or to stay the action on grounds of forum non conveniens.

The Ontario Superior Court, in a decision reported [2008] O.T.C. Uned. D55, applied the eight factor test from Muscutt v. Courcelles (Ont. C.A. 2002) to determine whether there was a real and substantial connection between the action and Ontario that could justify the assumption of jurisdiction by the Ontario courts. The motions judge concluded that the balance favoured Ontario assuming jurisdiction against CRL given its connection with Ontario and the subject matter of the action, but that jurisdiction should not be assumed against the other two foreign defendants. The motions judge concluded that it could not be said that Cuba was clearly a more appropriate jurisdiction to try the action than Ontario and accordingly dismissed the defendants' forum non conveniens motion. Accordingly, the motions judge dismissed the action against VRL and SuperClubs International Ltd. but refused to dismiss or stay the action against CRL, Denis and Sport au Soleil.

The Appeals:

CRL filed appeals in both the Charron and Van Breda cases against the decisions refusing to dismiss the actions for want of jurisdiction or to stay the actions on grounds of forum non conveniens, raising the following issues:

(1) Should the Muscutt test for assumed jurisdiction against out-of-province defendants be retained, revised or abandoned in favour of some other test?

(2) Should Ontario assume jurisdiction under the appropriate test for assumed jurisdiction in the circumstances of these cases?

(3) If there is jurisdiction, did the motions judges err in refusing to grant a stay on grounds of forum non conveniens?

The Ontario Court of Appeal (a five member panel) dismissed the appeals. The court held that the Muscutt test should not be abandoned in favour of some other test; however, the court clarified and reformulated the Muscutt test. As to the Charron appeal, the court, applying the reformulated Muscutt test, agreed that Ontario should assume jurisdiction over CRL, and refused to interfere with the motions judge's refusal to stay the action against CRL on the ground of forum non conveniens. As to the Van Breda appeal, the court saw no basis to interfere with the motions judge's conclusion that there was a significant connection between the plaintiffs' claim and Ontario on the basis that the contract was entered into in Ontario. Thus the Van Breda claim fell within the connection described in Civil Procedure Rule 17.02(f)(i) (i.e., a claim made with respect to a contract that was made in Ontario); therefore, a real and substantial connection between the claim and Ontario was presumed to exist. CRL was unable to rebut the presumption under the revised Muscutt test, thus the Ontario court could assume jurisdiction. The court also refused to interfere with the motions judge's refusal to stay the Van Breda action on the ground of forum non conveniens.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - The Ontario Court of Appeal clarified and reformulated the test for assuming jurisdiction over extra-provincial defendants set out in Muscutt v. Courcelles (Ont. C.A. 2002) - See paragraph 109 - The court explained how it arrived at the reformulated test - See paragraphs 83 to 92.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - Appellants argued that the eight factor test for assuming jurisdiction over extra-provincial defendants laid down by the court in Muscutt v. Courcelles (Ont. C.A. 2002) should be abandoned in favour of a common law test modelled on the Uniform Law Conference model Court Jurisdiction and Proceedings Transfer Act (CJPTA) - That model act was intended to implement uniform statutory rules by which all Canadian courts established jurisdiction over particular proceedings - Four Canadian jurisdictions had adopted the CJPTA - The Ontario Court of Appeal stated that the appellants' submissions exaggerated both the degree of uncertainty produced by Muscutt and the degree of certainty and predictability that would be achieved by adopting the CJPTA - However, the court agreed "that there is much to be gained by paying close attention to the CJPTA model in clarifying or modifying the Muscutt test. We should not ignore the considerations that led to the adoption of CJPTA or the criticism that the Muscutt eight factor test is too complicated and difficult to apply. In refining the Muscutt test, we can look to CJPTA as a worthy attempt to restate and update the Canadian law of jurisdiction. We can adopt certain attractive features of CJPTA and, in so doing, bring Ontario law into line with the emerging national consensus on appropriate jurisdictional standards" - The court thereafter made several clarifications and modifications to the Muscutt test - See paragraphs 53 and 59 to 70.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - The Ontario Court of Appeal modified the eight factor test for assuming jurisdiction over extra-provincial defendants set out in Muscutt v. Courcelles (Ont. C.A. 2002) having regard, inter alia, to the Uniform Law Conference model Court Jurisdiction and Proceedings Transfer Act (CJPTA) - The first modification was modelled on s. 10 of the CJPTA which gave presumptive effect to a list of connecting factors drawn and distilled from provincial rules of court for service ex juris - The court stated that it would adopt and apply that approach with reference to Civil Procedure Rule 17.02 (service outside Ontario without leave) - Therefore the first stage of the new Muscutt test required the court to "determine whether the claim falls under rule 17.02 (excepting subrules (h) and (o)) to determine whether a real and substantial connection with Ontario is presumed to exist. The presence or absence of a presumption will frame the second stage of the analysis. If one of the connections identified in rule 17.02 (excepting subrules (h) and (o)) is made out, the defendant bears the burden of showing that a real and substantial connection does not exist. If one of those connections is not made out, the burden falls on the plaintiff to demonstrate that, in the particular circumstances of the case, the real and substantial connection test is met  ... " - See paragraphs 70 to 80 and 109.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - In Muscutt v. Courcelles (Ont. C.A. 2002), the court set out an eight factor test for assuming jurisdiction over extra-provincial defendants - In 2010, the Ontario Court of Appeal stated that there had been a tendency to obscure the distinction between jurisdiction simpliciter and forum non conveniens and to merge considerations pertaining to forum non conveniens into the real and substantial connection analysis, in part because of the unduly wide interpretation given in some cases to fairness (Muscutt factors 3 and 4) - The court reiterated what it said in Muscutt: "there is a clear distinction to be drawn between legal jurisdiction simpliciter and the discretionary test for forum non conveniens. The factors to be considered are different and distinct. In order to maintain the necessary degree of certainty and clarity, it is important to maintain and respect the distinction between the two tests. In particular, the factors listed for consideration at the second, discretionary, forum non conveniens stage, have no bearing on real and substantial connection and, therefore, should not be considered at the first stage of jurisdiction simpliciter analysis. The test for jurisdiction simpliciter is whether there is a real and substantial connection, an inquiry that does not turn upon a comparison with the strength of the connection with another potentially available jurisdiction" - See paragraphs 81 and 82.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - A husband and wife (the Charrons), purchased an all-inclusive vacation, which included scuba diving, from an Ontario tour operator (Hola) - The Cuban owned resort (Breezes) was managed by Club Resorts Ltd. (CRL), a Cayman Islands company - CRL had an agreement with Hola to provide resort accommodation for inclusion in its package tours - The husband died during a dive - His estate and family sued CRL et al. (Family Law Act (Ont.) claims and claims for damages for tort or breach of contract committed elsewhere) - A motions judge refused to dismiss the action against CRL for want of jurisdiction in Ontario or to stay the action - CRL appealed - The Ontario Court of Appeal applied a modified and reformulated Muscutt test to the jurisdiction issue (see paragraph 109) - At stage one of the new test, the court determined that there was no presumption of a real and substantial connection because this case did not fall within a connection specified in Civil Procedure Rule 17.02 that attracted presumptive effect - However, moving to the second stage of the test and having regard to the general principles outlined by the court, the Charrons met their burden of establishing a real and substantial connection to support Ontario assuming jurisdiction over CRL - In particular, there was connection between the forum (Ontario) and the Charrons' claim, a connection between the forum and CRL and fairness considerations favoured assumption of jurisdiction - The court also considered it significant that this was a case where in a similar situation Ontario would be willing to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis as that being asserted in this case - Further, the court refused to interfere with the motions judge's refusal to stay the action on the ground of forum non conveniens - See paragraphs 110 to 129.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - Common law spouses, Van Breda and Berg (a professional squash player), booked a one week trip at a SuperClubs Breezes resort (Cuba), through Denis, who operated a web based business from his Ottawa home - Denis had an arrangement with Club Resorts Ltd. (CRL), a Cayman Islands company, which managed Breezes resorts, to find sports instructors who would get accommodation at resorts in return for instruction services - At the resort, Van Breda was seriously injured (i.e., rendered a paraplegic when sports equipment collapsed) - Van Breda and Berg sued CRL et al. (contract and tort) - A motions judge refused to dismiss the action for want of jurisdiction or to stay the action - CRL appealed - The Ontario Court of Appeal applied a modified and reformulated Muscutt test to determine the jurisdiction issue - As to the first stage of the test, the court saw no basis to interfere with the motions judge's conclusion that the contract was entered into in Ontario - Thus the claim fell within the connection described in Civil Procedure Rule 17.02(f)(i) (i.e., a claim respecting an Ontario contract), giving rise to a presumption of a real and substantial connection between the claim and Ontario - The fact that the claim was formed in both contract and tort did not defeat or minimize the significance of the contract as a significant connection to Ontario - Moving to the second stage of the analysis, CRL was unable to meet its burden of showing that a real and substantial connection did not exist having regard to the general principles set out in the revised Muscutt test - There was a significant connection between the plaintiffs' claim and Ontario and between CRL and the forum - Fairness favoured assumption of jurisdiction - The court also refused to disturb the motions judge's refusal to stay the action on the ground of forum non conveniens - See paragraphs 130 to 149.

Conflict of Laws - Topic 1661

Actions - General - Forum conveniens - General - [See fourth Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7284

Contracts - Jurisdiction - Forum conveniens - [See fifth and sixth Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - [See all Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - [See fifth and sixth Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7602

Torts - Jurisdiction - Tort occurring outside jurisdiction - [See fifth and sixth Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - [See all Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 9284

Practice - Stay of proceedings - Where court lacks or declines jurisdiction - [See fifth and sixth Conflict of Laws - Topic 603 ].

Cases Noticed:

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), consd. [para. 1].

Leufkens v. Alba Tours International Inc. et al. (2002), 160 O.A.C. 43; 60 O.R.(3d) 84 (C.A.), refd to. [para. 1].

Lemmex v. Bernard et al. (2002), 160 O.A.C. 31; 60 O.R.(3d) 54 (C.A.), refd to. [para. 1].

Sinclair et al. v. Cracker Barrel Old Country Store Inc. (2002), 160 O.A.C. 54; 60 O.R.(3d) 76 (C.A.), refd to. [para. 1].

Gajraj et al. v. DeBernardo et al. (2002), 160 O.A.C. 60; 60 O.R.(3d) 68 (C.A.), refd to. [para. 1].

Hunt v. T&N plc - see Hunt v. Lac d'Amiante du Québec ltée et al.

Hunt v. Lac d'Amiante du Québec ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, refd to. [para. 15].

Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122, refd to. [para. 41].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 42].

Beals v. Saldanha et al., [2003] 3 S.C.R. 416; 314 N.R. 209; 182 O.A.C. 201, refd to. [para. 42].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 42].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 42].

Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612; 354 N.R. 201; 218 O.A.C. 339, refd to. [para. 43].

Castillo v. Castillo, [2005] 3 S.C.R. 870; 343 N.R. 144; 376 A.R. 224; 360 W.A.C. 224, refd to. [para. 43].

Spar Aerospace Ltd. v. American Mobile Satellite Corp. et al., [2002] 4 S.C.R. 205; 297 N.R. 83, refd to. [para. 52].

Coutu v. Gauthier Estate (2006), 296 N.B.R.(2d) 34; 769 A.P.R. 34; 264 D.L.R.(4th) 319 (C.A.), refd to. [para. 52].

Black v. Breeden et al., [2009] O.T.C. Uned. 733; 309 D.L.R.(4th) 708 (Sup. Ct.), refd to. [para. 52].

Bouzari et al. v. Islamic Republic of Iran (2004), 220 O.A.C. 1; 71 O.R.(3d) 675 (C.A.), refd to. [para. 54].

Penny v. Bouch et al. (2009), 281 N.S.R.(2d) 238; 893 A.P.R. 238; 310 D.L.R.(4th) 433 (C.A.), refd to. [para. 68].

Stanway v. Wyeth Canada Inc. et al., [2008] B.C.T.C. Uned. 533; 2008 BCSC 847, refd to. [para. 68].

Strukoff v. Syncrude Canada Ltd. (2000), 143 B.C.A.C. 183; 235 W.A.C. 183; 80 B.C.L.R.(3d) 294 (C.A.), refd to. [para. 76].

O'Brien v. Canada (Attorney General) et al. (2002), 201 N.S.R.(2d) 338; 629 A.P.R. 338 (C.A.), leave to appeal refused (2002), 302 N.R. 399; 213 N.S.R.(2d) 400; 667 A.P.R. 400 (S.C.C.), refd to. [para. 93].

Feigelman et al. v. Aetna Financial Services Ltd., Lax and Burke, [1985] 1 S.C.R. 2; 56 N.R. 241; 32 Man.R.(2d) 241, refd to. [para. 104].

Teck Cominco Metals Ltd. v. Lloyd's Underwriters - see Lombard General Insurance Co. of Canada v. Cominco Ltd. et al.

Lombard General Insurance Co. of Canada v. Cominco Ltd. et al., [2009] 1 S.C.R. 321; 384 N.R. 351; 266 B.C.A.C. 32; 449 W.A.C. 32; 2009 SCC 11, refd to. [para. 105].

Hilton v. Guyot (1895), 159 U.S. 113 (Sup. Ct.), refd to. [para. 107].

Sampson v. Olsen (2005), 274 Sask.R. 234 (Q.B.), refd to. [para. 114].

Pacific International Securities Inc. v. Drake Capital Securities Inc. et al. (2000), 145 B.C.A.C. 221; 237 W.A.C. 221; 194 D.L.R.(4th) 716 (C.A.), refd to. [para. 114].

Hanlan et al. v. Sernesky (1998), 108 O.A.C. 261; 38 O.R.(3d) 479 (C.A.), refd to. [para. 127].

Wong v. Lee et al. (2002), 157 O.A.C. 340; 58 O.R.(3d) 398 (C.A.), refd to. [para. 127].

Somers v. Fournier et al. (2002), 162 O.A.C. 1; 60 O.R.(3d) 225 (C.A.), refd to. [para. 127].

Fordyce v. Round Hill Developments, 1978 U.S. Dist. LEXIS 19112 (S.D.N.Y. Dist. Ct.), refd to. [para. 133].

Frummer v. Hilton Hotels (1967), 19 N.Y.2d 533, refd to. [para. 133].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, refd to. [para. 135].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Rules of Civil Procedure (Ont.), rule 17.02 [para. 71].

Authors and Works Noticed:

Black, Vaughan, and Brechtel, Mat, Revising Muscutt: The Ontario Court of Appeal Takes Another Look (2009), 36 Adv. Q. 35, generally [para. 55]; p. 36 [para. 51].

Black, Vaughan, and Pitel, Stephen G.A., Reform of Ontario's Law on Jurisdiction (2009), 47 C.B.L.J. 469, generally [para. 55].

Blom, Joost, and Edinger, Elizabeth, The Chimera of the Real and Substantial Connection Test (2005), 38 U.B.C. L. Rev. 373, generally [para. 55].

Castel, Jean-Gabriel, The Uncertainty Factor in Canadian Private International Law (2007), 52 McGill L.J. 555, generally [para. 55].

Dusten, Cheryl D., and Pitel, Stephen G.A., The Right Answers to Ontario's Jurisdictional Questions: Dismiss, Stay or Set Service Aside (2005), 30 Adv. Q. 297, generally [para. 55].

Edinger, Elizabeth, Spar Aerospace: A Reconciliation of Morguard with the Traditional Framework for Determining Jurisdiction (2003), 61 Advocate 511, generally [para. 55].

Holmested, George Smith, and Watson, Garry D., Ontario Civil Procedure (2001), p. 17-19 [para. 72].

Manitoba, Law Reform Commission, Private International Law Report, Report No. 119 (2009), generally [para. 53].

Monestier, Tanya  J., A "Real and Substantial" Mess: The Law of Jurisdiction in Canada (2007), 33 Queen's L.J. 179, generally [para. 55].

Ontario, Law Reform Commission, Reforming the Law of Crossboarder Litigation: Judicial Jurisdiction (2009), generally [para. 53].

Pitel, Stephen G.A., and Dusten, Cheryl D., Lost in Transition: Answering the Questions Raised by the Supreme Court of Canada's New Approach to Jurisdiction (2006), 85 Can. Bar Rev. 61, generally [para. 55].

Uniform Law Conference of Canada, Model Court Jurisdiction and Proceedings Transfer Act, generally [para. 1]; s. 10 [para. 71, Appendix A].

Walker, Janet, Beyond Real and Substantial Connection: The Muscutt Quintet (2002), Ann. Rev. of Civil Lit. 61, generally [para. 55]; pp. 71 to 74 [para. 78].

Walker, Janet, Muscutt Misplaced: The Future of Forum of Necessity in Canada (2009), 48 C.B.L.J. 135, generally [paras. 54, 55].

Walker, Janet, Must there be Uniform Standards for Jurisdiction within a Federation? (2003), 119 L.Q.R. 567, p. 570 [para. 78].

Walker, Janet, Rule 17: Service outside Ontario, in Holmested, George Smith, and Watson, Garry D., Ontario Civil Procedure (2001), p. 17-19 [para. 72].

Counsel:

John A. Olah, for the appellant, Club Resorts Ltd. in Van Breda;

Peter J. Pliszka and Robin P. Roddey, for the appellant, Club Resorts Ltd. in Charron;

Chris G. Paliare, Robert A. Centa and Tina H. Lie, for the respondents, in Van Breda;

Jerome R. Morse, John Adair, and Lori Stoltz, for the respondents, in Charron;

Howard Borlack, Lisa La Horey, and Sabine Kharabian, for the respondent, Bel Air Travel Group Ltd.;

Catharine H. Buie, for the respondent, Hola Sun Holidays Ltd.;

John Terry and Charles W. Finlay, for the intervener, The Tourism Industry Association of Ontario;

Allan Rouben, for the intervener, Ontario Trial Lawyers Association.

These appeals were heard on October 5-6, 2009, by O'Connor, A.C.J.O., Weiler, MacPherson, Sharpe and Rouleau, JJ.A., of the Ontario Court of Appeal. Sharpe, J.A., filed the following reasons for judgment for the court on February 2, 2010.